Faculty Scholarship Digest
Marc Spindelman, Sexual Freedom’s Shadows, 23 Yale J.L. & Feminism 179 (2011)
In this comprehensive essay, Marc uses the opportunity to review Tim Dean’s 2009 book, Unlimited Intimacy: Reflections on the Subculture of Barebacking, as an opportunity for a broader exploration and biting critique of the ideology of sexual freedom, a framing of sex’s value as freedom from society’s strictures, as “sheer power.”
The essay begins by carefully examining Dean’s purportedly neutral examination of the subculture of barebacking and the provocative claim that a significant group of men seek unprotected sex in order to contract HIV and, even more provocatively, that such action positively bespeaks sexuality’s march towards freedom. While questioning many of Dean’s empirical assumptions, the essay also places Dean’s arguments in a broader context. Far from an original moral view, the essay argues, Dean’s vision fits into a long tradition of arguing for “sexual freedom”—pleasure above all. Marc’s previous work has established him as a leading critic of this view, and he brings his expertise to bear here to critique Dean’s ultimate thesis. Marc identifies the extent to which Dean’s ethical argument, his ability to discount or deny the costs of sexual freedom, depends on the concept of consent: “consent marks the distinction between ethical and unethical sex.” Marc proceeds to reveal the problems with such an account. First, “victims of past sexual violation” may have been programmed by past abuse to “consent” to exercises of sexual power that violate and destroy. Second, it may be “that gay men in a homophobic society have histories of anti-gay abuse from childhood on” that ought to be relevant to the meaning of consent. Indeed, Marc argues, Dean’s reliance on the concept of consent not only fails in its justificatory aims, it also “may simply hide ways in which consent is continuous with unethical abuses of power.”
Marc Spindelman, Foreword: Progressive Constitutionalism Considered, 72 Ohio St. L.J. 1069 (2011).
This foreword serves as an introduction to a symposium issue of the Ohio State Law Journal reflecting on Progressive Constitutionalism that brought leading constitutional scholars from around the country to Moritz for an outstanding live event that included a keynote from Professor Mark Tushnet. The Symposium authors addressed such questions as what (if anything) is the theory of progressive constitutionalism regarding the Constitution and its interpretation and where does it stand, so the Foreword does not provide pat answers, though it notes two ideas frequently associated with the concept: (i) promotion of constitutional interpretation and leadership from elsewhere than the courts (e.g., the legislature); and (ii) challenges to “originalism” as a means of constitutional interpretation.
Marc Spindelman was the Symposium’s faculty advisor and this Foreword frames the many questions addressed by the Symposium speakers and their subsequent publications in the Ohio State Law Journal. Marc concludes that there is “plenty more to do” for those wishing to work on progressive constitutionalism, and that the challenges for the field are deep, powerful and complex to such a degree that one is still driven to ask, as a student journal editor did towards the end of the Symposium, “what is progressive constitutionalism.”
Marc Spindelman, House Rule XII: Congress and the Constitution, 72 Ohio St. L.J. 1319 (2011).
In this article, part of a symposium on progressive constitutionalism, Marc considers a 2011 amendment to House Rule XII, which requires that for all prospective laws introduced in the House an accompanying document must specify “the power or powers granted to Congress in the Constitution” that allow it to enact the proposed law. Shortly after the amended rule was adopted, the Congressional Research Service issued a report giving the rule a narrow interpretation: it requires a statement of the relevant part of the Constitution, e.g., the Commerce Clause, but not an analysis supporting the implicit contention that the provision in question in facts provides a constitutional basis for the law. It is this interpretation that the article closely considers.
Marc notes that, while this narrow interpretation lessons the burden on the legislature, avoids thorny questions about how persuasive an analysis must be, and arguably supports separation of powers and comity between the branches, a broader interpretation requiring at least some analysis might better serve the underlying purpose of having Congress take more seriously the constitutional limits on its power. The article considers what the impact of such a broader rule might be: some deference to Congressional judgment by other branches; legislative respect for limits on legislative power, but also, perhaps, a greater sense of legislative obligation to protect rights of liberty and equality. Yet these considerations lead to a cautionary note, as neither side wants to see its “vision for a just constitution structurally foreclosed” by legislative interpretations of the other side. The article also surfaces several developments surrounding even the narrow interpretation of the rule that reveal a “constitutional fluency deficit” in the House that would make a broader interpretation even more problematic. Still, the article concludes, the small step taken by the new House rule may lead to fuller constitutional understanding in the House and, in due course and for better or worse, a more robust legislative constitutionalism in the future.
Marc Spindelman, Sexuality’s Law, 24 Colum. J. Gender & L. 87 (2013).
Marc Spindelman’s article, Sexuality’s Law, is quite simply the most ambitious, thought-provoking, and impressive piece of legal scholarship I have ever read. More book-length than a typical law review article, Sexuality’s Law is over 160 pages with more than 600 footnotes. Spindelman’s tome tackles the question of why the thousands of gay men infected with HIV have not used the law to seek redress for their injuries against the other gay men who infected them by failing to disclose their status. Even though HIV transmission through gay sex could be intentional, reckless, or negligent conduct, there are virtually no criminal prosecutions for intentional exposure and few civil cases based on recklessness or negligence. Spindelman argues that an ideology of sexual freedom that deems the value of sex in its dark side and places unfettered sex above all else is the explanation. This ideology of sexual freedom entails a right to die for sex and the right to kill in its name. Viewed through this lens, sexual transmission of HIV cannot be seen as harm, but as an expression of pure power. To construct his ideology of sexual freedom, Spindelman uses hundreds of philosophical and legal sources and demonstrates his mental dexterity in blending everyone from Marx to Mapplethorpe, from Foucault to Fiss. After describing the ideology of sexual freedom, Spindelman offers proof through discussion of four fundamental texts written by prominent gay men from the 1980s, the high-water mark of the AIDS epidemic: Douglas Crimp’s How to Have Promiscuity in an Epidemic, David Chambers’s Gay Men, AIDS, and the Code of Condom, Richard Mohr’s Gays/Justice: A Study of Ethics, Society, and Law, and Leo Bersani’s Is the Rectum a Grave?. He uses these sources to construct a cultural legal study described by another reviewer as “deeply intellectual” and “stunning.” In advancing his theory, Spindelman bravely explores the interrelationship between law, culture and sexuality. He does so with prose that is so literary, elegant, and impassioned that it rivals the masterworks quoted in text and footnote. Georgetown’s Robin West sums up the significance of Sexuality’s Law: “This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.”
Marc Spindelman, Toward a Progressive Perspective on Justice Ginsburg’s Constitution, 70 OHIO ST. L. J. 1115 (2009).
In this contribution to the Law Journal’s Ginsburg Symposium, Mark examines Justice Ginsburg’s constitutional jurisprudence from the perspective of “progressive constitutionalism,” the argument that progressive politics “would stand a better chance of success than they presently do if the Supreme Court were to stand back and give the political processes their head.” According to this view, progressives would be better served instrumentally by a Court that was highly deferential to the legislative branches, that such deference would produce more robust progressive outcomes than a dependence on judicial review.
The article notes that Justice Ginsburg’s general tendencies towards incremental decisions and “a more dialogic approach” with the political branches are in general alignment with the values of progressive constitutionalism. Looking at her approach in some large-themed cases in her tenure involving sex discrimination, abortion, sexual intimacy, and assisted suicide, Marc concludes that progressive constitutionalism can offer “measured nods” to Justice Ginsburg.
In the end, Marc concludes, Justice Ginsburg has shown “an active faith . . . in the possibilities of politics and political deliberation, a faith in our institutions of government, and ultimately in the American people.”
Marc Spindelman, Gay Men and Sex Equality, 46 TULSA L. REV. 123 (2010).
Sex equality theory views gender, which pervasively organizes society and all our relations, as a social process and gender itself a product of social construction, so that “hierarchical sexuality . . . is to gender in a system of sex inequality as lynching is to race in a system of racial oppression: it . . . furthers social hierarchy in interpersonal and structural terms.” So sex equality theory sees even consensual and wanted sex as problematic when it is tied up with male supremacy. The article next describes multiple ways in which sex inequality is harmful to gay men and how sex equality rules are a significant part of the “legal protections gay men currently enjoy.” Yet, despite these advantages, “gay men themselves have been much, much less willing” to embrace sexual equality concepts. The article theorizes about why that might be so.
Marc identifies a number of possible reasons: gay men are still men and hence benefit from some of the consequent social rewards that flow to men from sexual inequality; gay men have tried to eliminate the hierarchical disadvantage of their sexual orientation “to gain the full set of privileges . . . that heterosexual men” enjoy, including those that sexual equality theory fights against; and a “learned disdain for women,” that comes with being a man “in a sex-unequal regime” that is not lessened by societal views associating homosexuality with femininity. In summary, Marc writes, for some gay men, benefitting by sex equality arguments somehow reinforces “male supremacy’s homophobic slurs about gay men’s ‘womanhood.’” The article suggests that underlying these grounds for gay male resistance to sex equality theory, however, is an ideology of sexual freedom, which “imagines that it is in and through sexual relations that identity and social status, and a resulting social hierarchy, can be achieved.” Sex equality principles, which seeks to tame sex and remove sex-based subordination, is antithetical to sexual freedom’s ideology of worshiped empowerment through sex.
Marc Spindelman (w/Judith Areen & Philomila Tsoukala), FAMILY LAW (6TH ED.) (Foundation 2012).
Marc (and Professor Tsoukala, Georgetown) join this leading casebook in this new edition. The book is interdisciplinary in its consideration of family law issues, sources of law apart from appellate opinions, and, in many instances, provides information about what happened after the court decision “to illustrate the strength and weaknesses of judicial intervention in family law.” In addition, to state the obvious, this is a field that has undergone rapid change and continues to do so; so there is much that is new in this new edition.
The introductory chapter brings many of these features vividly to life; one cannot easily imagine another casebook that engages even a casual reader so deeply, as everyone has been and usually is a part of a family. Marc and his co-authors highlight so many features: marriage as a formal matter is simultaneously becoming both more and less important; private ordering of intimate relations is growing at the same time as the federal government is expanding its constitutional role in family law; procedural innovation and international law issues—important trends in the law generally—are very present in the field. This latest edition keeps current with all this and much more.
Marc Spindelman, Tyrone Garner’s Lawrence v. Texas, 111 Mich. L. Rev. 1111 (2013).
In this book review for the Michigan Law Review, Marc Spindelman tackles Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas. The book has consistently received high praise because of the “deeply human-centered approach” the author uses to humanize the people involved in this civil rights victory for gays and lesbians. Spindelman has an alternative perspective. He sees the work not as merely describing a civil rights victory for gays and lesbians, but as story at the intersection of gender, class, and race. Spindelman explores this idea by comparing the lives of the two men at the center of the case, John Lawrence and Tyrone Garner. They were arrested in Lawrence’s Houston apartment and convicted of homosexual sodomy. Lawrence was a white, middle-class, middle-aged, veteran. After the Supreme Court victory, he returns to a life of anonymous normalcy, moving into a house with his partner, Jose Garcia, until Lawrence’s death of a heart ailment at 68. In contrast, Garner dies young and penniless after being sick for months. There was no funeral, no memorial service. They couldn’t even raise money to cremate him. Why these different outcomes? Spindelman suggests that the story of Tyrone Garner cannot be understood as one of just homophobia. Rather, he sees Garner’s treatment as one at the intersection of social issues. Garner was young, black, gay, poor, unemployed, effeminate, intemperate, and uneducated. These characteristics suggest that there was also a racial, gender, and class dimension accompanying homophobia. Spindelman still has high praise for Flagrant Conduct. He wants, however, for the reader to appreciate a bigger, better, more complex, and more accurate picture of the social issues at play.